“The basic rule is bail, not jail’ is a doctrine laid down by the Supreme Court of India in the landmark judgment of State of Rajasthan vs. Balchand alias Baliya. India’s anti-terror law, the Unlawful Activities (Prevention) Act of 1967 (UAPA), however has made “jail, not bail” the rule.
There is no doubt that India has been facing formidable challenges of terrorism. However, each counter-terrorism measure resulted in the massive abuse of the law and violations of human rights. In 1985, the Government of India enacted the Terrorist and Disruptive Activities (Prevention) Act, commonly known as TADA to address the insurgency in Punjab. It was allowed to lapse in 1995 following outcry against its abuse.
In wake of the 1999 IC-814 hijack and 2001 Parliament attack, India enacted the Prevention of Terrorism Act of 2002 (POTA) in March 2002. POTA too was repealed with effect from 21.09.2004 because of its abuse.
The United Progressive Alliance Government repealed the POTA and amended the UAPA for dealing with “terrorist activities” with effect from 21.9.2004. Following the Mumbai terror attack, it went on to amend the UAPA to bring the same draconian features of the POTA. The UAPA was further amended in 2012 and 2019.
India faces formidable security challenges especially in the Union Territory of Jammu and Kashmir, the Naxalite affected States and North Easter region. The insurgency has reduced significantly with the exception of Jammu and Kashmir.
On the Left Wing Extremism, the Ministry of Home Affairs in its 2019-2020 states, “The last six years have seen a significant decline in LWE violence as well as the geographical spread of LWE. The declining trend which started in 2011 continues in 2019 as well. There has been an overall 41% reduction in violent incidents (1136 to 670) and 49% reduction in LWE related deaths (397 to 202) in 2019 as compared to 2013. In comparison to 2018 also, the year 2019 saw a decline of 19% (833 to 670) in incidents of violence and 15% in the number of resultant deaths (240 to 202). The casualties to Security Forces declined by 22% (67 to 52) and the number of LWE cadres eliminated also declined by 35% (225 to 145)”. In 2019, Chhattisgarh with 263 incidents and 77 deaths, remains the worst affected State followed by Jharkhand (200 incidents and 54 deaths), Maharashtra (66 incidents and 34 deaths), Bihar (62 incidents and 17 deaths), and Odisha (45 incidents and 11 deaths).
In the North East India, the MHA further states, “The security situation in the North Eastern States has improved substantially since 2014. The last six years have seen a significant decline in insurgency incidents by 70%, casualties of security forces personnel by 78% and civilian deaths by 80% in the region. The year 2019 recorded the lowest insurgency incidents and casualties among civilians and security forces during the last two decades since 1997. Compared to 2018, insurgency incidents have registered a decline of 12% in the year 2019 (2018: 252, 2019: 223). Similarly, there has been a huge reduction of 71% in Security Forces (SF) deaths (2018-14, 2019-4) and 9% in civilian deaths (2018-23, 2019-21) in 2019. Counter Insurgency Operations led to neutralization of 12 militants, arrest of 936 militants and recovery of 312 weapons in 2019, in the region. A total of 158 cadres of militant outfits of NE States surrendered with 67 weapons in 2019 and joined the mainstream society.”
Among the North Eastern States, Tripura, Sikkim and Mizoram are completely free from insurgency. In 2019, insurgency related violence declined by 87% in Meghalaya, 39% in Assam, 3% in Arunachal Pradesh and 1% in Manipur as compared to 2018.
In Jammu and Kashmir has been affected by terrorist and secessionist violence that is sponsored and supported from across the border. Since the advent of militancy in Jammu and Kashmir in 1990, 14,054 Civilians and 5,294 personnel of Security forces have lost their lives till December, 2019. The trends of terrorist violence in Jammu and Kashmir remained the same.
India has banned 49 organisations and 41 persons have been declared as individual terrorists under the UAPA.
The National Crimes Record Bureau (NCRB) under the Ministry of Home Affairs began recording the cases registered under the UAPA 1967 under a separate head from 2014. It provides testimonies to the abuse of the UAPA.
First, cases under the UAPA have been rising while admittedly terror incidents are reducing as per the Ministry of Home Affairs. Under the UAPA, 976 cases were registered in 2014, 897 cases in 2015, 922 cases in 2016, 901 cases in 2017, 1182 cases in 2018, 1226 cases in 2019 and 1321 cases in 2020. On the other hand, it is the case of the Ministry of Home Affairs that” there has been an overall 41% reduction in violent incidents (1136 to 670) and 49% reduction in Left Wing Extremism (LWE) related deaths (397 to 202) in 2019 as compared to 2013”. In the North East India, from 2014 to 2019-2020 insurgency incidents declined by 70%, casualties of security forces personnel by 78% and civilian deaths by 80%” while Tripura, Sikkim and Mizoram are completely free from insurgency. In 2019, insurgency related violence declined by 87% in Meghalaya, 39% in Assam, 3% in Arunachal Pradesh and 1% in Manipur as compared to 2018.
Second, as per the NCRB, from 2015 to 2020 a total of 9,334 persons were arrested in 5,934 cases under the UAPA across the country. The maximum number of the UAPA cases were reported from Manipur (1965) followed by Jammu and Kashmir (1163), Assam (923), Jharkhand (501) and Uttar Pradesh (385). The maximum number of arrests under the UAPA had been reported from Manipur (2,383) followed by Uttar Pradesh (1758), Assam (1052), Jammu and Kashmir (851) and Bihar (606) as given below:
|SL No.||State/UT||2015||2015||2016||2016||2017||2017||2018||2018||2019||2019||2020||2020||Total CR||Total PAR|
|29||A & N Islands||0||0||0||0||0||0||0||0||0||0||0||0||0||0|
|32||Daman & Diu||0||0||0||0||0||0||0||0||0||0||0||0||0||0|
|34||Jammu & Kashmir||59||10||161||56||156||35||245||177||255||227||287||346||1163||851|
That Uttar Pradesh with no State specific designated banned organisation under the UAPA has arrested more people under the UAPA than Jammu & Kashmir, Assam, Bihar and Jharkhand indicates that the UAPA is not being used against the designated terror organisations but those who allegedly committed the offences of causing or intending to cause disaffection against India i.e. sedition and offences punishable under section 153A (45 of 1860) or section 153B of the Indian Penal Code (IPC) which have been included as offences under the UAPA. Uttar Pradesh further has the highest ratio of arrest per case with about five persons being arrested in each case in comparison to arrest of about two persons in each case in other States.
Uttar Pradesh is not the exception. In Tamil Nadu despite no known terror activity, about 420 persons were arrested in 281 cases during 2015-2020 with the arrest of 308 persons in 270 cases in 2019 alone. This shows that the UAPA is abused for political purposes.
Third, despite the police and the National Investigation Agency (NIA) aggressively pursuing the NCRB cases, the average rate of conviction was mere 5.5% in comparison to average chargesheeting rate of 52.9% each year during 2014-2020.
The NCRB reports from 2014-2020 reveals that a total of 10,552 persons were arrested under the UAPA from 2014 to 2020. These included 2,181 cases in 2014; 1,128 cases in 2015; 999 cases in 2016; 1,554 cases in 2017; 1,421 cases in 2018; 1,948 cases in 2019 and 1,321 cases in 2020.
During the period, chargesheets were submitted in the court against a total of 5,794 persons during the corresponding period. Comparison of the number of persons against whom chargesheets were filed and the total number of persons arrested show that the rate of charge sheet was 53.7% in 2014, 16.6% in 2015, 36.9% in 2016, 68.3% in 2017, 60.0% in 2018, 58.5 in 2019 and 76.3% in 2020 while the average rate of charge sheet in the past seven years was 52.9% which suggests that the police and the National Investigation Agency had been very aggressively pursuing the cases registered under the UAPA.
Table 2: Year wise rate of chargesheeting and conviction under UAPA as per NCRB
|Year||No. of persons arrested||No. of persons charge-sheeted||Charge sheet rate in %||Persons convic-ted||Persons acquit-ted||Persons dischar-ged||Convic-tion Rate in %|
|Total in 7 years||10552||5794||370.3||253||516||133||38.7|
|Overall arrest, acquittal and conviction||10552||2.39||4.89||1.26|
As stated in the Table above, a total of 253 accused persons were convicted during 2014-2020 with 18 in 2014, 23 in 2015, 24 in 2016, 39 in 2017, 35 in 2018, 34 in 2019 and 80 in 2020 while a total of 516 accused persons were acquitted with 123 in 2014, 84 in 2015, 19 in 2016, 42 in 2017, 117 in 2018, 16 in 2019 and 115 in 2020 and a total of 133 accused persons were discharged with none in 2014 and 2015, 8 in 2016, 2 in 2017, 23 in 2017, 92 in 2019 and 8 in 2020. The average rate of conviction was mere 5.5% in comparison to average chargesheeting rate of 52.9% each year during 2014-2020.
Fourth, the high rate of charge sheets vis-à-vis the very low rate of conviction as well as considerably good number of acquittals and release on discharge by the court suggests that a large an overwhelming majority of those arrested and chargesheeted on frivolous grounds or insufficient/without evidence leading to acquittal or release on discharge by the court.
Table 3: Year wise volume of cases sent for trial and rate of pendency at trial as per NCRB
|Year||No. of cases sent for trial during the year||No. of cases pending from previous years||Total cases pending trial during the year (Cl. 2+3=4)||Cases pending trial at the end of the year||Pendency Rate|
Fifth, the high rate of pendency of trial of the UAPA cases with average of 95.4% during 2014 to 2020 indicates continuing jail detention of the under trials given the impossibility to obtain bail. The rate of pendency was 97.3% in 2014, 94.2% in 2015, 97.8% in 2016, 95.8% in 2017, 93.4% in 2018, 95.0% in 2019 and 94.6%.
Section 43D(2) of the UAPA extends the maximum period of detention of a person accused under this law to 180 days against the statutory period of detention of 90 days provided under Section 167 of the Criminal Procedure Code (CrPC). Therefore, a person cannot get bail for a period of minimum 180 days. Further, sub-section (5) of Section 43D takes away the discretion provided to the Court or Judge under Chapter XXXIII of the CrPC with regard to the grant of bail as it makes a statutory duty on the part of the UAPA special court not to release an accused on bail without giving the Public Prosecutor an opportunity of opposing the bail application. Further, the proviso to sub-section (5) casts a statutory duty on the court or judge not to release an accused booked for offences of terrorist activities or terrorist organisations on bail, if on a perusal of the case diary or the report submitted by the police under section 173 of the Criminal Procedure Code makes a opinion that reasonable grounds for believing that the accusations against such accused is prima facie true.
The death of 84-year-old Jesuit priest Father Stanislaus Lourduswamy’s popularly known as Father Stan Swamy in Mumbai on 5 July 2021 is the most emblematic case of abuse of the UAPA and how an accused booked under the UAPA suffers protracted incarceration because of the denial of bail. Swamy, the oldest prisoner to be accused of terror offences, suffered from worsening health conditions including Parkinson’s disease and many other ailments had been held in judicial custody in Taloja jail since October 2020. He was refused bail on medical conditions as the NIA vehemently opposed, leading to his death in custody.
On 2 December 2021, the Supreme Court held that an undertrial cannot be indefinitely detained in prison if there is a delay in concluding the trial while granting bail to 74- year alleged senior Maoist leader Asim Kumar Bhattacharya being tried by the NIA under various provisions of the IPC and the UAPA. His bail plea was rejected by the trial court and the Calcutta High Court. He had been in jail since 6 July 2012. The chargesheet was filed in 2012 but charges were framed in 2019. Though the NIA Act provides for day-to-day hearing, it was not being followed in this case, causing delay in proceedings. The court noted there is no likelihood of wrapping up the trial as the statement of only one out of more than 100 witnesses has so far been recorded in the case.
The Court held that “the liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge him on bail”. The court further stated, “Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice”. 
Those who are granted bail under the UAPA are indeed the lucky one. The process under the UAPA is the punishment in itself.
In conclusion, the UAPA made offences of sedition or promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony made terrorists activities. It is indeed the discretion of the executive/prosecution whether to invoke the UAPA or IPC or both for the same offences. The UAPA therefore has turned into an instrument to silence human rights defenders, journalists, academics and critics instead of addressing real terror offences. India needs to repeal the UAPA to address the real offences of terrorism and not suppressing democratic dissent.
. State of Rajasthan vs. Balchand alias Baliya is available at https://main.sci.gov.in/jonew/judis/5235.pdf
. TADA to UAPA, what India’s terror laws say, Indian Express, 30 August 2018, https://indianexpress.com/article/explained/tada-to-uapa-what-indias-terror-laws-say-elgaar-parishad-probe-5331777/
. See the preambular paragraph of the Unlawful Activities (Prevention) Act, 1967, available at: https://www.mha.gov.in/sites/default/files/A1967-37.pdf
. INDIVIDUAL TERRORISTS UNDER UAPA by the Ministry of Home Affairs, accessed on 18.12.2021 https://www.mha.gov.in/node/98181
. Annual Report 2019-20, Ministry of Home Affairs, Government of India, https://www.mha.gov.in/sites/default/files/AnnualReport_19_20.pdf
. The life and death of Father Stan Swamy, The Hindustantimes, 12 July 2021; https://www.hindustantimes.com/india-news/the-life-and-death-of-father-stan-swamy-101626061660105.html
. Undertrial can’t be detained indefinitely, say Supreme Court, Times of India, 2 December 2021, http://timesofindia.indiatimes.com/articleshow/88038239.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst